Citation Nr: 21022380 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-12 353 DATE: April 15, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) as due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served in the United States Army from May 2001 to June 2005. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) November 2018 rating decision of the Agency of Original Jurisdiction (AOJ). 1. Entitlement to a disability rating in excess of 30 percent for depressive disorder is remanded. The Veteran claims that his psychiatric disability has worsened, and warrants a rating in excess of 30 percent. The most recent VA examination regarding the severity of the Veteran’s psychiatric disability was performed in June 2009. He failed to report for a VA examination scheduled in May 2018 in connection with his current claim. At the time of the June 2009 VA examination, the Veteran denied experiencing suicidal ideation, though he did attempt suicide in 2003, was found to have “mildly impaired” memory capabilities, and only reported one instance of experiencing a panic attack. The Veteran only reported losing one week of work in the preceding year to his disability. The medical record, and lay evidence, appears to show progressive worsening of the Veteran’s condition. The Veteran’s medical records show a gradual increase in the amount of panic attacks he experiences, and the Veteran’s medication regimen over the last decade has been altered to accommodate the worsening of symptoms. In an April 2020 submission to VA, the Veteran stated that due to his “worsening condition” he has been unable to obtain employment. He stated that he experienced “severe panic attacks around three times per week,” and would have to leave work “about two times per month” in order to “manage” his anxiety. The Veteran also reported that some of the attacks “were so intense” he “contemplated suicide.” The Veteran also reported being “much more withdrawn” from his wife, to the detriment of their relationship. He stated that “everything” made him “angry and irritable,” and had problems “lashing out at those around [him].” In the same April 2020 statement, the Veteran reported that his anxiety symptoms caused his hands to “tremble and shake.” The Board finds that the Veteran is competent to report the symptoms of his service-connected psychiatric disability. However, as it has been over 10 years since the last VA examination, the Board finds that a new VA examination should be obtained in order to obtain contemporaneous medical evidence in connection with the current appeal. McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). 2. Entitlement to a TDIU is remanded. The Veteran, in his February 2019 Notice of Disagreement (NOD), stated that he is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to TDIU was raised by the Veteran’s representative in his February 2019 NOD; therefore, the Board has jurisdiction over this issue as well as the increased rating issue on appeal. A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. The Board notes that, currently, the Veteran does not meet the threshold schedular requirements for a TDIU. However, the Board is remanding the Veteran’s claim for an increased rating for his service-connected depressive disorder, and it is possible that the Veteran shall be awarded a disability rating such that he will then meet the schedular requirements for a TDIU. If, however, on remand and readjudication of the Veteran’s increased rating claim, the TDIU threshold schedular are not met, the AOJ should refer the Veteran’s case to the Director of VA’s Compensation Service for consideration of an extraschedular TDIU rating. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the severity of his service-connected depressive disorder. The examiner must be provided with access to the Veteran’s claims file including this remand. The examiner’s report should consider the relevant medical and lay statements including those statements contained in the Veteran’s April 2020 affidavit of record in formulating his evaluation. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. Following review of the claims folder, an interview with the Veteran, and completion of any testing deemed necessary, the examiner should fully describe the current extent and symptoms associated with the Veteran's service-connected depressive disorder. In so doing, the examiner is asked to: (a.) provide a full description of the psychiatric aspect of the depressive disorder and report all signs and symptoms necessary for evaluating this disability under the appropriate rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of the relevant symptoms. The examiner is specifically asked to address the extent of social and occupational impairment resulting from the Veteran's depressive disorder. (b.) Any opinion provided must be accompanied with a detailed rationale. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must explain why that is the case. 2. Then, once the above action has been completed and the Veteran’s increased rating claim has been readjudicated, the AOJ shall take all appropriate action to develop and adjudicate the Veteran’s claim of entitlement to a TDIU with consideration of the Veteran’s statements that he last worked in January 2019; that his service-connected psychiatric disability caused him to experience frequent panic attacks that prevented him from successfully carrying out his job; and the functional impact of the Veteran’s bilateral knee disabilities on his ability to obtain and maintain substantially gainful employment. If after readjudication of the Veteran’s increased rating claim, the assigned disability ratings for his service-connected disabilities do not meet the TDIU threshold percentage requirements, refer the Veteran's claim of entitlement to a TDIU to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.